SINGARAVELU KOUNDER Vs. SULAIMAN

JUDGEMENT

(1.) These appeals arise out of two suits, namely, O.S. No. 206 of 1996 and O.S. No. 210 of 1996 on the file of the Court of the Subordinate Judge of Palakkad. O.S. No. 206 of 1996 was filed by Singaravelu Kounder against Sulaiman, his wife Kamaraunnissa and Abdul Razack Rowther for a declaration that the agreement for sale executed by defendants 1 and 2 in favour of the third defendant is invalid and for a decree for specific performance of Exhibit A1 agreement for sale executed by defendants 1 and 2 in favour of the plaintiff. There is also a prayer for injunction restraining defendants 1 and 2 from executing sale deed in favour of the third defendant or in favour of strangers. O.S. No. 210 of 1996 was filed by Sulaiman and Kamarunnissa against Singaravelu Kounder for recovery of possession of the plaint A schedule property. The trial court granted a decree in O.S. No. 206 of 1996 for specific performance, for declaration and for injunction. O.S. No. 210 of 1996 was dismissed.

(2.) A.S. No. 422 of 1998 is filed by defendants 1 and 2 and A.S. No. 341 of 1998 is filed by the plaintiff challenging the judgment and decree in O.S. No. 206 of 1996. A.S. No. 346 of 1998 is filed by the plaintiffs challenging the dismissal of O.S. No. 210 of 1996. Hereinafter, Sulaiman Rowther and Kamarunnissa are referred to as the 'appellants', Singaravelu Kounder is referred as the '1st respondent' and Abdul Razack Rowther is referred to as the '2nd respondent'.

(3.) The contentions raised by the appellants, inter alia, are the following. The property in question belonged to appellant No. 2. For conducting the marriage of their daughter, the appellants decided to sell a portion of the property (plaint A schedule property in O.S. No. 210 of 1996) to the 2nd respondent for a consideration of Rs. 5,20,000/- as per agreement dated 20-1-1995. Advance of Rs. 50,000/- was received by them. 2nd respondent did not fulfill his part of the contract within the agreed period of three months. The first respondent came to know about that agreement and the failure of the 2nd respondent to complete the transaction. The 2nd respondent also joined in the settlement talks. The first respondent agreed to purchase the property for Rs. 5,35,000/-. Exhibit A1 agreement dated 9-6-1995 was entered into between the appellants and the first respondent and an advance of Rs. 1,25,000/- was paid by the first respondent. This agreement was executed in order to discharge the debts incurred by the appellants in connection with the marriage of their daughter. Three months' period was fixed for executing the sale deed. Time was the essence of the contract. Respondents 1 and 2 were put in possession of the property excluding the house occupied by the appellants. At the request of the first respondent, time was extended till 7-11-1995. On 3-11- 1995, the first respondent paid Rs. 30,000/- to the appellants to discharge their debt to the Police Housing Society. First respondent also agreed to discharge the debt due to Canara Bank and he deposited Rs. 30,000/- on the next day. On Exhibit A1, an endorsement was made on 3-11-1995 stating that Rs. 60,000/- was paid to the appellants. It was agreed that the first respondent would discharge by 6-11-1995 the debt due from the appellants to the State Bank of Travancore. It was also agreed that the sale deed could be executed on 7-11-1995 after paying the balance due to the appellants. The first respondent prepared the sale deed and stated he would discharge the debt due to State Bank of India and would pay only Rs. 10,000/- to the appellants. The appellants did not agree and insisted on discharging the debt due to the Bank or to pay the full balance sale consideration. On the promise by the first respondent that somebody would bring money to pay the full amount to the appellants, the appellants were made to wait till 5 P. M. in the Sub Registrar's office. By that time, the 2nd respondent filed O.S. No. 836 of 1995 in collusion with the first respondent and obtained an interim order of injunction restraining sale of the property. The first respondent was not ready and willing to perform his part of the contract. Exhibit A5 notice dated 17-11- 1995 was issued by the first respondent demanding specific performance. The appellants sent Exhibit A6 reply stating true facts. Since the first respondent refused to vacate the property, the suit for recovery of possession was filed.